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ICC Response to the European Commission Proposed Regulation on Public Procurement

ICC Response to the “Proposal for a Regulation of the European Parliament and of the Council on the access of third-country goods and services to the European Union’s internal market in public procurement and procedures supporting negotiations on the access of Union goods and services to the public procurement markets of third countries (COM (2012) 124 final)”.

On 21 March 2012, the Commission published its proposal on the restriction of access to EU markets with the aim of it being passed by the two EU legislative institutions, the European Parliament and the Council under an accelerated timetable. According to the Commission, the urgency results from the reluctance of some non-EU countries to open up their markets further in the course of on-going multilateral or bilateral trade negotiations. An example of this is the negotiations on the accession of China to the Government Procurement Agreement (GPA). The Commission claims that, without the adoption of the proposal, Europe will be unfairly accessible to bidders form certain non-EU countries in comparison with the limited opportunities that are available for EU bidders in those same third country markets.

We do support, to some degree, the process of opening up access to trade in certain countries which up until now have neither signed the GPA nor any bilateral free trade agreements with other important trade partners. We agree that this process needs to be accelerated. Nevertheless we are convinced that any steps taken in this context have to be very carefully considered and reviewed in order not to create new barriers to trade, distortions of competition or bureaucratic burdens on international trade.

Given the far-reaching consequences of the envisaged new trade regulation, we feel that before adopting such a regulation in the EU, considerably more in-depth analysis is necessary in order to assess how far Member States of the EU are “open” for tenders from third countries and to what extent they are legally able to reject bidders from countries who are yet to sign any trade agreements with the EU or the individual Member State.